The predominance test skill games often rely on asks whether skill or chance is more likely to decide a contest's outcome. Under the predominant factor test, a contest is not gambling if skill predominates. It is only one of three tests used in the US, though, and some state statutes, including Texas's, set a stricter standard. A skill label does not decide legality.
Two developments in 2026 make the distinction urgent. In June, the Pennsylvania Supreme Court held that Pace-O-Matic's skill devices are slot machines. It reversed years of lower-court rulings that had applied the predominant factor test. That same month, Texas Attorney General Opinion KP-0520 said that a machine meets the state's gambling device definition if chance plays any role in whether the player wins something of value.
The three tests courts use
In Dew-Becker v. Wu, 2020 IL 124472, decided April 16, 2020, the Illinois Supreme Court described the three standards:
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Predominant factor: "contests in which the outcome is mathematically more likely to be determined by skill than chance are not considered gambling."
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Material element: "a contest is considered a game of chance if the outcome depends in a material degree upon an element of chance, even if skill is otherwise dominant."
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Any chance: "this test finds a contest to be gambling if it involves any chance whatsoever."
Some legislatures put the test directly into statute. New York is one example. New York Penal Law §225.00(1) defines a "contest of chance" as "any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance." That is a material element standard, so a game can fall under it even when skill dominates.
How predominance works in practice
The Illinois court adopted the predominant factor test and applied it to a $100 head-to-head daily fantasy contest on FanDuel. It held: "Because the outcomes of head-to-head DFS contests are predominately skill based, we conclude that plaintiff was not engaged in 'gambling'" (FindLaw).
That holding applied to one type of contest in Illinois. Predominance is a factual question about how a specific game produces its outcomes. A ruling on one format does not carry over to another game, another machine or another state.
Texas: the statute sets the test
Texas works close to the any-chance end of the range. Texas Penal Code §47.01(4) defines a gambling device as a contrivance that "for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance."
Section 47.01(4)(B) carves out a narrow exclusion, often called the "fuzzy animal" exclusion. It covers devices "designed, made, and adapted solely for bona fide amusement purposes" that reward players "exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items." The wholesale value from a single play can be "not more than 10 times the amount charged to play the game or device once or $5, whichever is less." Separately, §47.01(1) defines a "bet" as "an agreement to win or lose something of value solely or partially by chance." That definition excludes prizes offered to actual contestants in "a bona fide contest for the determination of skill, speed, strength, or endurance."
AG Opinion KP-0520
Sen. Bob Hall requested KP-0520, which addressed machines offering both a chance-based mode and a skill-based mode. According to Public Gaming Research Institute's reporting, the opinion states: "So long as chance plays any role in determining whether the player obtains something of value, the device satisfies the statutory definition." PGRI also quotes: "Any award of value remains inextricably intertwined with the element of chance." Attorney general opinions are advisory. They are not court rulings.
Local enforcement in Texas has also been tested in court. The Texas Association of Broadcasters, an industry association, reported on Oct. 21, 2024 that the Texas Supreme Court denied a game room operator's rehearing request. That ended a nearly nine-year dispute over Fort Worth's efforts to regulate and prohibit game rooms. TAB also reported that the Fort Worth Court of Appeals reaffirmed in 2022 that eight-liners are illegal lotteries.
Licensing is not legality
The Texas Comptroller's coin-operated machine page lists the general business license, import license, registration certificate and repair license. It does not address eight-liners, gambling devices or Penal Code Chapter 47. A Comptroller license is part of licensing and tax administration. It does not show that a machine is legal.
Pennsylvania: a predominance win that did not hold
Pennsylvania's Commonwealth Court ruled for Pace-O-Matic's "Pennsylvania Skill" devices under the state's predominant factor test. On June 15, 2026, the Pennsylvania Supreme Court reversed those rulings in In re: Three Pennsylvania Skill Amusement Devices (No. 50 MAP 2024) and POM of Pennsylvania, LLC v. Commonwealth, Department of Revenue (No. 2 EAP 2024). It held the devices are "slot machines" under the Race Horse Development and Gaming Act (Saiber LLC).
The Philadelphia Inquirer reported a 4-2 vote. Justice David Wecht wrote the majority, joined in full by Chief Justice Debra Todd and Justice Daniel McCaffery. Justice Christine Donohue concurred. Justices Sallie Updyke Mundy and Kevin Brobson dissented in part, and Justice Kevin Dougherty did not participate. The Inquirer quotes Wecht: "The device is a 'slot machine.'" It quotes Donohue: "Because chance predominates both the player's eligibility for winnings and the magnitude of those winnings, the [skill games] device is a gambling device."
Saiber's summary says the court called the predominant factor analysis "irrelevant to the legal issues in these cases," because 2017 Gaming Act amendments added definitions for skill and hybrid slot machines. Knox Law quotes those definitions. A "skill slot machine" is a "slot machine in which the skill of the player, rather than the element of chance, is the predominant factor." A "hybrid slot machine" is a "slot machine in which a combination of the skill of the player and elements of chance affect the outcome." Knox reports that the court held unlicensed operation violates Crimes Code §5513. It also reports the court's criticism that, under the lower court's reasoning, "a person could remove slot machines from a casino, place them in a backyard, and operate an unlicensed casino free from the Gaming Act."
Status as of mid-September reporting
The court stayed its order for 120 days. Spotlight PA reported on Sept. 17, 2026 that the ruling takes effect Oct. 13. It also reported that State Police enforcement, including seizures and possible criminal charges, begins Oct. 14. As of that report, the legislature had not acted. Lawmakers were due back Sept. 28, with six session days before the deadline. Spotlight PA estimates about 70,000 machines statewide. The industry-backed HB 2213 would charge a $500 monthly fee per device and cap the statewide total at 50,000 machines. The Inquirer reported that Gov. Josh Shapiro had proposed a 52% tax rate, matching slot machines, and projected $765.9 million in first-year revenue. Barley Snyder has published guidance for businesses on contracts and removal planning.
"No chance" designs rejected
Courts in two states have rejected designs marketed as removing chance. A three-judge Shelby County Chancery Court panel in Tennessee ruled Torch Electronics' "No Chance Games" illegal (CasinoBeats, July 18, 2025). Shelby County District Attorney Steve Mulroy said: "The court made it clear: these machines are illegal, and we have the authority to go after those who profit from them."
On Feb. 17, 2026, U.S. District Judge John A. Ross of the Eastern District of Missouri ruled in TNT Amusements v. Torch Electronics. He found that Torch's devices are "gambling devices" when operated outside licensed casinos and contain "multiple elements of chance." He also rejected the pre-reveal theory. According to Casino.org, he cited the Tennessee ruling and described Tennessee's gambling laws as "nearly identical" to Missouri's in material respects.
What this means for operators
These are editorial recommendations, not sourced legal requirements:
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Find out which test your state applies and read the exact statutory wording. In Texas, that means §47.01(4) and its narrow exclusions.
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Check whether a separate law, such as Pennsylvania's Gaming Act, defines the device regardless of how skill compares with chance.
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Do not treat a vendor's legal opinion, a skill mode, a tax license or another state's ruling as proof of legality.
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Use the vendor comparison checklist to record supplier questions and evidence. The worksheet documents diligence. It is not legal approval or vendor verification.
Consult qualified counsel in your jurisdiction before placing or keeping equipment.
Related reading
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How to Vet Skill Machine Manufacturer Compliance Claims: A Texas-First Checklist
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Skill Machines Seized at Your Location? A Texas Guide to the First Hours and Days
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Fuzzy Animal Exception Texas: Why Courts Rejected the Loophole
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Texas Gambling Device Definition: What Counts Under Penal Code §47.01(4)
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Texas Coin-Operated Machine Data: What Comptroller Counts Can and Can't Tell You
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Texas Penal Code 47 Occupations Code 2153 Difference Explained for Skill Machine Operators
Sources
This article was prepared with AI assistance. Consult primary sources and qualified counsel for legal decisions.
Reporting is for information, not legal advice. A vendor listing or the term skill game does not establish a machine's legality in any jurisdiction.